Gallagher v. Delaware, Lackawanna & Western R. R., 72 Pa. Super. 124

Gallagher v. Delaware, Lackawanna & Western R. R.

72 Pa. Super. 124 | Pa. Super. Ct. | 1919

Opinion by

Orlady, P. J.,

The validity of the order made by the court below depends wholly upon whether the evidence justified the finding that the claimant received his injuries, by accident, in the course of his employment with the defendant, *126on the date and at the place mentioned in the record. It is not disputed that the claimant received serious injuries, but it is vitally important that the conclusions of fact and law must be ascertained from credible testimony to make the award’ a valid one. The referee after investigation, finds that the claimant was an ashman at the defendant’s colliery, “that on June 7, 1916, the claimant was struck in his left eye with a small piece of copper, the accident resulting in an injury to the same eye, which with its effects and the attention given to it, caused him to be totally disabled until and including August 20, 1916”; and “that the above described injury was sustained by accident in the course of his employment with the defendant on the date and at the place mentioned, etc.” The referee finds, as a conclusion of law, “that confirming the facts hereinbefore found, the claimant sustained such an injury by accident in the course of his employment as is contemplated by the Workmen’s Compensation Act of 1915, and is entitled to. an award, and the defendant is liable for the amount of the same.” On an appeal to the Workmen’s Compensation Board from the finding by the referee, the commissioner found, “The claimant on July 7, 1916, sustained an injury to his ^eft eye from the explosion of a dynamite cap, which resulted in the total loss of vision of the eye. The referee has found that the loss is permanent, and that no operation is likely to restore the sight. There is conflicting testimony as to when, and under what circumstances the injury occurred......The referee saw and heard the witnesses, and his conclusions as to the correct import of all the circumstances in the case as to how the accident happened, and his finding that the claimant was at the time he suffered the injury actually engaged in the course of his employment with the defendant, will not be challenged by us.”

The reports of the referee and the commission fail to show the character of work the claimant was engaged in at the time he received the injury, where he was working, *127under whose direction, or any description of the duties expected of him in the course of his employment. In this respect the report of the referee and the commission are totally inadequate to sustain the award.

In the claim petition filed with the Workmen’s Compensation Board, the following appears: “(3) Where did the accident happen? Hallstead Mines, Duryea, Pa. (I) When did the accident happen? July 7, 1916, between 10 and 11 a. m. (5) What was the nature of accident and how did it happen? While laying down an iron bar after barring a car, it struck a dynamite cap which must have fallen there, the explosion of which destroyed the sight of left eye. (6) What kind of work were you doing at the time of the accident? Moving a car into the ash pit to haul out ashes which was part of my regular work. (7) What was the nature of the injury? Complete loss of sight of my left eye. (8) Did you receive surgical or hospital services? Yes, at the Moses Taylor Hospital, Scranton, Pa., and Wills’s Eye Hospital, Philadelphia, Pa.,” from which it appears that the injury was received while the claimant was moving a car to the ash pit to haul out cinders, which was part of his regular work. In the defendant’s answer to this claim petition, it is averred “That the injury sustained by the claimant was not the result of an accident occurring in the course of his employment.” These are treated as part of the pleadings by the parties, and the issue thus framed was considered by the referee and commission. Their reports should show clearly and unmistakenly all the controlling facts to determine whether or not the claimant was injured in the course of his employment.

While the notes of testimony are not properly a part of the record sent up on this appeal from the commission board and from the common pleas, and even if they are mistakenly included in the record, they should not be considered: McCauley v. Woolen Co., 261 Pa. 313. But where the pleadings in the case show the exact facts in dispute, it is to be assumed that they were considered by *128the referee and commission. The finding that an employee’s injury was received in an accident arising in the course of his employment, is a mixed question of law and fact: Flucker v. Steel Co., 263 Pa. 113. While the finding of fact of the referee, affirmed by the Workmen’s Compensation Board, in case of a hearing de novo, are conclusive and are not subject to review by the courts, — Messinger v. Lehigh Valley R. R. Co., 261 Pa. 336, yet, there should be in every case, exhibited in the report of a referee or the Workmen’s Compensation Board a finding based on subordinate underlying findings to justify the conclusion of law and fact. The omission to do so in this case is not to be considei’ed a precedent in other cases, and we dispose of this appeal on the special facts appearing in the record. We are not favored with any opinion by the court below, as should be, but an examination of the whole record fairly discloses that the conclusion reached by the referee,— that the claimant received his injuries while in the course of his employment sustains the averment in the claim petition, and with the supplementary proof determines the extent and degree of his injuries: Selva v. Allegheny River Mining Co., 68 Pa. Superior Ct. 612; Bridge v. Lomax, 69 Pa. Superior Ct. 109. The modified order was rightly made by the commission under the admitted facts.

The judgment is affirmed and the appeal is dismissed, at the cost of the appellant.